story by Tom Korosec and Andrew Harris
Wal-Mart Stores Inc. asked a federal judge to dismiss a proposed class-action lawsuit alleging the company discriminated against female employees in Texas by paying and promoting them less than men.
“This is a copycat rerun,” Theodore Boutrous Jr., a lawyer for Wal-Mart, told U.S. District Judge Reed O’Connor today (Oct. 4) at a hearing in Dallas. “This is a process the court should not go through.”
The case is one of four regional suits filed against Wal- Mart, the world’s largest retailer, since the U.S. Supreme Court rejected a nationwide class in June 2011. A similar suit is pending in California, and complaints were filed this week in Florida and Tennessee.
O’Connor didn’t immediately rule on Wal-Mart’s dismissal motion, which argues that the class action is barred by the statute of limitations and repeats claims made in the rejected national class action. The Texas case was originally filed in October 2011 and amended in January.
Wal-Mart said in its request for dismissal of the lawsuit that the women suing are trying to take “a second bite at the certification apple” after last year’s Supreme Court decision.
“This isn’t the second bite at the apple,” Joseph Sellers, a lawyer for the plaintiffs, told the judge today. “It’s the first bite.”
Plaintiffs’ lawyer Hal Gillespie told the court that the case would bring fresh evidence of practices used in Texas that discriminated against women in promotions. He said they include “the tap on the shoulder,” no posting of positions and a requirement that a promoted employee be willing to relocate, an option that women are less likely to choose than men.
The lead plaintiff is a woman who has worked at Wal-Mart’s Sam’s Club stores in Texas, Oklahoma and California. She and six other named plaintiffs seek to represent at least 50,000 women working in Texas Wal-Mart and Sam’s Club stores since Dec. 26, 1998. They are seeking changes to Wal-Mart’s practices as well as back pay and punitive damages.
The company said the complaint does not allege any facts that would establish a class-wide policy of discrimination. Some of the women who sued allege denial of promotion opportunities but not pay differences while others allege pay discrimination but not promotion differences, the company argued.
The plaintiffs said in court papers opposing dismissal that the nationwide class action covered 41 company regions. They said the Texas lawsuit limits itself to three Wal-Mart regions and two Sam’s Club regions, all largely based in Texas.
“Within this area plaintiffs challenge the decisions of a discrete group of managers who made the pay and promotion decisions,” lawyers for the women wrote. Those managers “have long known about gender disparities” yet “have failed to take remedial action.”
The original nationwide lawsuit was filed by six current and former Wal-Mart workers alleging discrimination in pay and promotions. The women were granted class-action status in 2004, allowing them to sue as a group. Bentonville-based Wal-Mart appealed and the Supreme Court blocked the nationwide case from going forward, sending it back to district court in San Francisco.
A complaint on behalf of 11 women was filed in federal court in Fort Lauderdale, Florida, today, two days after the case that was brought in Nashville, Tenn.
“Our interviews with countless women have unveiled a shameful pattern of deliberate discrimination against female employees throughout the Southeast region,” Theodore J. Leopold, a lawyer for the Florida plaintiffs, said in a statement today.
ALABAMA, SOUTH CAROLINA
His clients are suing on behalf of women employed in stores in Alabama, Florida, North Carolina, South Carolina, Tennessee, Virginia and part of Georgia, according to the statement.
“These cases are nothing more than recycled claims driven by the same plaintiffs’ lawyers whose arguments were considered and rejected by the Supreme Court,” Randy Hargrove, a spokesman for Wal-Mart, said today in a phone interview.
The high court rejected the nationwide class action because of the individualized nature of the plaintiffs’ situations, he said.